Opinions, October 18, 2016: Child Support & Contempt

This morning the Fourteenth Court of Appeals released its memorandum opinion in In re K.M.M. and M.W.M., Case No. 14-15-00204-CV (which had been consolidated with In re Matthew Walter Mahoney, No. 14-15-00540-CV).

Matthew Mahoney filed a petition for writ of mandamus and an appeal challenging the trial court’s order holding him in contempt for failure to pay child support, granting judgment for arrearages, and suspending commitment. The Court of Appeals denied the petition and affirmed the trial court, the 247th.

The procedural history of this case is lengthy. Mahoney and Kelli Green were divorced in 2006 by agreed order which was modified by agreed order in 2010. Mahoney moved to modify the 2010 order in January 2011. Green filed a motion to confirm child support arrearage in December, 2011.

In March 2012, Mahoney offered Green a lien against real property in Galveston in exchange for her release of $21,091.26 in child support arrearage. Green agreed and Mahoney signed a promissory note for regular payments. Green signed a release of child support arrearages. In March, 2012, the trial court signed an order in the modification releasing the arrearages (the “2012 order”).

Mahoney failed to make payments under the promissory note and failed to file a deed of trust for the Galveston property. Green filed a motion for enforcement in July, 2012. Mahoney alleged the arrearages were released, per the 2012 order.

Green then filed a bill of review to set aside the 2012 order based on Mahoney’s fraudulent conduct. The trial court granted the bill of review and vacated the 2012 order. Mahoney appealed that order, but the Fourteenth Court of Appeals dismissed it for want of jurisdiction. The trial court heard the enforcement and, in February 2015, signed the order at issue in the mandamus and appeal.

The order found Mahoney in contempt for violating both the 2006 order (failure to pay health insurance premiums) and 2010 order (failure to pay monthly child support). The trial court also assessed fees against Mahoney for about $31,000 for the enforcement proceeding, the bill of review proceeding, and the appeal of the bill of review.

Mahoney asserted three issues in his appeal and 6 issues in his petition for writ of mandamus. The Court of Appeals addressed the appellate issues first.

In his first appeal issue, Mahoney argued that the fees ordered by the trial court for the bill of review and the appeal thereof were in error because they arose from a non-enforcement action and therefore are not authorized by statute. The Court of Appeals found that Mahoney did not raise the issue in the trial court and thus did not preserve it for review.

Mahoney’s second appeal issue was an extension of his first, that the relief was not requested by Green in her motion for enforcement. He argued on appeal that absent such a pleading , he was not put on notice that fees for the bill of review would be considered. But, the Court of Appeals noted, he did not cite any cases in support of the argument and it was therefore inadequately briefed.

In his third appeal issue, Mahoney argued the judgment for fees was void because the trial court’s order “fails to track the findings made by the Trial Court of the findings required by the Texas Family Code.” Mahoney evidently cited Tex. Fam. Code §157.166(b) in support of this proposition, but no other legal authority. That section provides:

(b) If the order imposes incarceration or a fine for criminal contempt, an enforcement order must contain findings identifying, setting out, or incorporating by reference the provisions of the order for which enforcement was requested and the date of each occasion when the respondent’s failure to comply with the order was found to constitute criminal contempt.

The Court of Appeals excerpted at length the findings in the trial court’s order (i.e. that Mahoney failed to make the requisite payments even though he was ordered and able to do so) and found they complied with the statutory requirements.

In his petition for writ of mandamus, Mahoney’s first three issues were identical to the three appellate issues and were overruled.

In the first of his three remaining issues, Mahoney argued he was denied due process because the motion for enforcement failed to provide adequate notice and did not meet the requirements of sec. 157.002. The Court of Appeals overruled this issue because the motion set out the provisions of the 2006 and 2010 orders that were violated and alleged that Mahoney did not make the payments on the date and in the amounts ordered.

Mahoney also argued the trial court’s order failed to satisfy sec. 157.166(a). The Court of Appeals disagreed, finding the order set forth which orders he was charged with violating, the amounts he had been ordered to pay, when he was ordered to pay them, when he failed to pay them, and the relief granted. As such, the order complied with sec. 157.166.

In his second remaining issue, Mahoney argued he was illegally compelled to comply because the underlying order was vague, ambiguous, and incapable of enforcement by contempt. Specifically (or unspecifically), Mahoney argued he was “under the impression that there was no child support order under which he was obligated at the time of the alleged non-compliance as found by the Trial Court.” In support of this jelly-like proposition, Mahoney (who is a family law lawyer) cited In re Chambers, 898 S.W.2d 257, 259-60 (Tex. 1995) which held, in part, that criminal contempt requires proof beyond a reasonable doubt of a reasonably specific order, a violation of that order, and the willful intent to violate the order. As the Court of Appeals put it, “Thus it would appear appellant is contending the trial court lacked evidence from which it could find that he willfully intended to violate the order for child support.” The Court of Appeals pointed out that Chambers also says that noncompliance with an unambiguous order gives rise to an inference that the noncompliance was willful. Further, the Court of Appeals cited evidence in the record that Mahoney had a history of nonpayment and his fraudulently obtaining the 2012 release as evidence that the noncompliance was willful.

In his final issue, Mahoney argued the trial court’s order was void for denial of due process because he was held in contempt for violating an order that was not in effect at the time of the alleged violations as “believed there was no child support order in effect after the granting of the bill of review.” If you read this far, you know this makes no sense.

Long story short, the trial court was affirmed.

 

 

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Opinions, October 4, 2016: Noticing Trials & Absence of Evidence

The First District Court of Appeals released its memorandum opinion in Richardson v. Sims, No. 01-15-01115-CV this morning. In September 2014, the father of the child filed an original SAPCR. The trial court held a temporary orders hearing which both mother and father attended. The mother was granted primary and the father was ordered to pay child support.

In February 2015, the father moved to modify the temporary orders because the mother had taken the child to Florida in violation of the temporary orders. The trial court modified the TO to give father primary and suspended his child support obligations. The mother did not appear at the hearing even though she’d received notice.

On June 8, 2015, the case was called for trial. The father was present with his counsel but mother did not appear. Trial proceeded and, after father’s testimony, a default judgment was entered appointing both parents JMC, with father as primary, ordering mother to pay child support and that mother’s visitation be supervised. The judgment also stated that the mother had made a general appearance and was notified of trial but failed to appear.

The mother filed a restricted appeal within six months of the default judgment. Her sole issue on appeal was that she did not receive notice of the June 8, 2015 trial setting as required by TRCP 245.

There is a presumption that a trial court hears a case only after proper notice to the parties and the appellant challenging that presumption has a heavy burden. The trial court provides the parties notice when a contested case is set for trial and the rules do not require the trial court to include documentary evidence in the record that notice was sent. Thus, if the record is silent as to whether notice was given, no error appears on the face of the record. A recitation of due notice in the judgment constitutes some evidence that proper notice was given.

In this case, the judgment which stated that proper notice was given constituted some evidence of proper notice. The mother argued that clerk’s notice does not contain a notice of the trial setting, but, the Court of Appeals noted, this is not proof she did not receive notice of the trial setting as the clerk’s record typically does not include notice of trial setting.

In other words, absence of evidence is not evidence of absence. Because there is no evidence affirmatively stating that the mother did not receive notice of the trial, the Court of Appeals held it must affirm the default.